JITENDRA NATH CHAUDHURI, J. -
(1.) CRIMINAL Appeal No. 339 of 1981 and Criminal Appeal No. 340 of 1981 both arise out of the same sessions trial No. 6(11) 80 held by the 10th Court of the Additional Sessions Judge at Alipore resulting in the convictions of all the 14 appellants Under Sections 148 IPC, 307/149 IPC and 302/149 IPC. They were each sentenced to one year R.I. Under Section 148 IPC, 7 years R.I. Under Section 307 IPC and to imprisonment for life Under Section 302/149 IPC, the sentences to run concurrently. Both these appeals involve 14 appellants in all, in Criminal Appeal No. 340 of 1981, Lakhraji Devi and her three sons viz., Ram Murad Prosad, Ram Samaj Prosad and Ram Surat Prosad alias Lotan being the appellant, while Criminal Appeal No. 339/81 is on behalf of the remaining 10 appellants. These two Criminal Appeals since they arise out of the same joint trial have been heard together and this judgment will govern both.
(2.) THE 14 appellants are (1) Lakhraji Devi, (2) Ram Murad Prosad, (3) Kishen Jadav (4) Inder Hela, (5) Ganesh Show, (10) Mahesh Passi, (11) Bhola Passi, (12) Som Nath Passi, alias Prasad, (13) Raj Path Passi alias Manager, and (14) Ram Surat Prosad alias Lotan. All the appellants have been charged Under Section 148 IPC for being members of an unlawful assembly on '21.6.1978 at Mudipara, P.S. Titagar and in prosecution of the common object of the said assembly viz., in assaulting Provakar Tewari and his brother, committed rioting, being armed at the time with deadly weapons to wit, sword, pipe gun, nepala end lathi. They have all been further charged Under Section 307/149 IPC for an assault on Sudhakar Tewari the brother of Provakar Tewati, in prosecution of the said common object of the said unlawful assembly. They have all been also charged Under Section 302/149 IPC for causing death of Provakar Tewari, being members of the said unlawful assembly, in prosecution of the said common object of that assembly.
The prosecution case in brief is as follows: On 21.6.1978 at about 9.30/9.40 P.M. Sudhakar Tewari (PW 1) and Md. Abbas (PW 4) were gossiping on a Chabutar (a cemented platform rectangular in shape) at Muchipara (Mudipara) under P.S. Titagar. The accused Mahesh, Somnath and Kishen Jadav were sitting on the other side of the said Chabutar. After a while Provakar Tewari and Debakar Tewari the two brothers of Sudhakar (P.W. 1) came there. Thereafter the accused Lakhraji Devi also came near the said Chabutar and had talks with the accused Mahesh, Somnath and Kishen. Lotan, Ram Murad and Ram Samaj, the three sons of the accused Lakhraji Devi came there in the meanwhile along with the accused Fera Prosad. They began talking to each other. Soon thereafter Fera Prosad went to his house and came back with the accused Munna Passi, Gambler, Manager and Indar. They had talks with each other. Thereafter the accused Lakhraji came before Provakar and charged him by saying that last April he had assaulted her son Ram Samaj. Provakar denied the said charge and said that her son had been assaulted by Som Nath Passi. All on a sudden thereafter the accused Manager Passi assaulted him with a lathi on his head as a result of which Provakar fell down. The accused Lakhraji then assaulted Sudhakar with a sword on his back when Sudhakar (PW 1), a brother of Provakar, came to his rescue. The accused Mahesh assaulted PW 1 on his nose with a Nepala. PW 1 sustained blood injuries. In the meanwhile Provakar got up and started running away, but the accused Somnath, Lotan, Ram Murad, Ram Samaj and Daya Ram along with others chased him. Lotan and Ram Murad each had a sword and Som Nath had a nepala. Provakar took shelter in the house of one Kishore. But the accused Ram Surat and Ram Samaj along with others brought him out and assaulted him with swords while Somnath assaulted with a nepala. The accused Bhola Passi, had a pipe gun with him, fired one round from that gun threatening the persons present at the spot with dire consequences, as a result of which those persons could not proceed further to the assistance of Provakar. Provakar being assaulted in the above fashion fell down on the ground, his body covered with blood. The accused Lotan then told his mother the accused Lakhraji that they had finished their work. Thereafter under instructions of the accused Lakhraji all the accused fled. PW 1 went to the police station and lodged a written complaint which had been marked as FIR in this case (Ext. 1). PW 1 was sent to B.N. Bose Hospital, Barrackpore. Provakar was sent to R.G. Kar Medical College Hospital as his condition was precarious where he died at 1 A.M. on 22.6.78.
(3.) S .I. Ranada Paul (PW 10) I.O. of this case, then attached to P.S. Titagar, on receipt of the complaint from P.W. 1 (Ext. 1) went to the place of occurrence seized alamats drew up a sketch map with index and arrested the accused Ram Murad, Kishen Jadav, Inder Hela, Lakhraji and Gambler from Muchipara on 21.4.78. He examined P.Ws. 2, 3 and 4 and some others. He seized the wearing apparels of the deceased being produced by his wife (P.W. 3) under a seizure list in the presence of the witnesses. After obtaining the post -mortem report and on completion of investigation he submitted a charge -sheet against all the accused persons on 29.8.79.;